Environment: Biosafety Talks End on Mixed Note.

• Author: Lin, Lim Li

Montreal, Jan 31, 2000--After almost five years of painstaking negotiations, Parties to the UN Convention on Biological Diversity (CBD) finally reached agreement in the early hours of Saturday morning on a Biosafety Protocol to the CBD. The majority of countries had mixed feelings when the Chairman of the Biosafety Protocol negotiations, Juan Mayr Maldonado, Minister of Environment for Colombia, announced the conclusion of the week-long negotiations in Montreal.

The agreement will enable importing countries to limit import of genetically modified foods, and use the precautionary principle of the 1992 Rio Earth Summit Declaration. While the agreement speaks of the biosafety protocol and the WTO agreements being mutually supportive, it does not override rights and obligations under the multilateral agreements of the World Trade Organization.

[While the protocol includes the precautionary principle and some labeling requirements, and thus perhaps a plus for environmental groups, it may turn out to be much less than made out. For any "trade restrictions" will be tested through the WTO dispute settlement process--in terms of the health exception of Art.XX of the GATT and the WTO Agreements on Sanitary and Phyto-sanitary (SPS) measures and the Technical Barriers to Trade (TBT), with the obligations on importing countries interpreted cumulatively, by panels and the appellate body. Given the difficulties that developing countries will face in assembling and conducting scientific assessments of their own that would be tested in terms of Art.5.7 of the SPS agreement, they may find their particular individual measures easily declared illegal by the WTO panel system which is weighted against the developing world--SUNS]

Agreement to regulate the transfer, handling and use of living modified organisms (LMOs)--also referred to in some literature as genetically modified organisms (GMOs)--should have been reached in Cartagena, Colombia in February 1999. However, the US-led Miami Group (comprising Canada, Australia, Argentina, Chile and Uruguay as well) scuttled agreement by refusing to allow any provision in the Protocol that would impede their free export of genetically modified (GM) commodities.

Three core outstanding issues had been identified by Juan Mayr and adopted by delegates at an informal consultation in Vienna last September. There were long-drawn discussions at Vienna to reach an understanding on concepts relating to the general scope of the Protocol, the relationship of the Protocol to other international agreements (particularly the WTO agreements), and the system for obtaining consent from importing countries to the entry of GM commodities destined for food, feed and processing.

By 9 pm on Friday, the last day of the negotiations, it was common knowledge that the disagreement over the Precautionary Principle and the relationship clause, considered to be the most difficult hurdle, had been resolved.

Delegates and observers were expecting the plenary session to be called at any time to adopt the Biosafety Protocol. As hour after hour dragged by with sporadic announcements from the...